2021 - Vaccinations and the Workplace – A Q&A with Su Allen HR

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The global occurrence of Covid-19 and the subsequent restrictions, regulations, safeguards and now vaccines created to combat it have raised many discussions on workplace health and safety, managing risk, personal choice and freedom, privacy, and many more that will undoubtedly develop as the year progresses.

Therefore, this month’s blog is a Q&A, featuring the most frequently asked questions posed by employers regarding vaccinations and other considerations for the workplace.

Q:  Do I really need to make my staff wear face coverings in the workplace?

As an employer, you have a legal requirement to comply with workplace health and safety obligations with regards to employees and customers.  Carry out a detailed risk assessment to identify where there are opportunities for virus transmission within your workplace and identify the measures needed to prevent it.  If your risk assessment concludes that face coverings are a suitable preventative measure, then you should instruct your employees, and customers and other visitors to your work locations, to act accordingly.

Q:  Can I bring disciplinary action against an employee who refuses to wear a face covering?

Yes, you can, but it is dependent on the circumstances, so don’t rush in!  Investigate the matter first before any action is taken, for example look at their post-employment health questionnaire if you use them.  If, following your risk assessment, it is a requirement to wear a face covering in your workplace, but your employee refuses, you should ask them for a reason. 

Be mindful that exemptions to wearing face coverings under the Covid-19 Regulations include people with physical or mental illnesses or disabilities who may be negatively impacted by wearing one, or subjected to severe distress.

If your employee is not exempt, and they do not have a legitimate reason for refusing to wear a face covering, that refusal can be considered as refusal to obey a reasonable instruction, and therefore grounds for disciplinary action.

Q:  My employee is exempt from wearing a face covering.  What can I do to maintain my duty of care to all employees?

Discuss with the exempt employee any reasonable adjustments that they feel could be made, and offer your own reasonable suggestions.  Consider adjusting their role so that it can be carried out at least 2 metres away from other colleagues.  Look into whether a protective screen can be erected in their workspace.  If masks are unsuitable for the employee, ask if they can wear a face shield/visor instead.  Consider whether their role can be relocated to their home in the short term.

Q:  Can I ask an employee to prove they are exempt?

Although current Government Guidance states that people do not need to provide medical evidence for their reason for not wearing a face covering, in an employment setting where reasonable adjustments may need to be considered to accommodate an exempt individual, the employer will generally be justified in asking for evidence.  They should be able to provide you with an exemption card or some other document to confirm this.

Q:  Can I force my employees to get the Covid-19 vaccine?

The simple answer is no. Whilst you can encourage employees to get vaccinated, you cannot force them to do so, as that could give rise to human rights concerns.

Note: This does not include those working in healthcare or care home settings, where refusing the vaccination could potentially justify dismissal, on the grounds of posing a threat to clinically vulnerable persons in their care.

Q:  If I can’t force my employees to get the vaccine, what can I do to convince them?

Whilst as a general rule you can’t make anyone have a vaccine (potential exceptions noted in previous question), you can ensure that your employees have access to information about the vaccine, to help them make an informed choice either way.  One concern an individual may have is needing to take time off work and the possible financial implications of this. To alleviate this concern if an employee wishes to be vaccinated, you may wish to consider allowing paid time off for attending vaccination appointments and, of course, extend this to the whole of your workforce so that you are treating everyone equally.

Q:  My employee is refusing to have the Covid-19 vaccine.  Can I dismiss them?

Potentially, yes.  If an employer considers and can prove that the requirement to be vaccinated is a reasonable management instruction, refusal to be vaccinated can then result in dismissal.  But before you rush into anything, you should know that this move is not without risk.  It can lead to claims of unfair dismissal, particularly if there are other ways that virus transmission can be minimised, through Covid Secure guidelines or options to work from home, for example. 

Employers should also be aware that some individuals with certain health conditions have been advised that they should not take the vaccine (this includes individuals who are pregnant and breast-feeding).  In this event, employers need to consider what exceptions can be made and whether their role can be moved to another part of the organisation, where the health and safety of that individual and their colleagues is protected.

Additionally, employers need to be aware that vaccine refusals may be made on the grounds of a disability, or religious or philosophical belief – all of which are protected under the Equality Act 2010.  To give just one example, the fact that many vaccines are created using pig gelatine poses an issue for some religious groups, as well as vegans.  Taking action against someone in a protected group who refuses the vaccine could give rise to claims of direct or indirect discrimination. 

Q:  Can I ask employees to inform me as to whether they have been vaccinated or not?

Potentially, yes.  You must be clear about what you plan to achieve by recording employees’ vaccination statuses.  Their status is their private health information and is classed as special category data under the GDPR.  Therefore, your use of this data must be fair, necessary, justifiable and relevant for a specific purpose, such as identifying what measures are needed to protect vulnerable individuals within the workplace, for example.

Note: Do bear in mind that – at the time of writing – it will still be many months before every priority group is offered the vaccine, so it is important to appropriately gauge the timing of your query amongst employees.

However, employers should be aware that asking this question increases the risk of discrimination claims, as employees may disclose personal information when answering, to explain why they have not been vaccinated, and this may be information that was not previously shared for privacy reasons (such as an early pregnancy or a health condition).  However, once in receipt of the new information, the employer may be under a duty to take action, such as making reasonable adjustments to accommodate a previously unknown condition, and in turn, indirectly revealing its existence to colleagues. Consequently, an employee could claim that any action taken by their employer, and any negative fallout as a result, was due to the information they disclosed.

The Information Commissioner’s Office (ICO) has advised that employers need only obtain confirmation as to whether the employee has had the vaccine or not (‘yes’ or ‘no’), and that collecting any more detail than this is unnecessary and excessive.

As you can see, it is a bit of a minefield in some cases, and it is easy to get it very wrong, not to mention the fact that Employment Law is having to keep up with a global situation that is changing almost daily.  Therefore, should you have any concerns about any of the matters discussed here and how they may impact your organisation, please do not hesitate to contact us.